Draft Principles and Guidelines for the Effective Elimination of Discrimination based on Work and Descent
REFERENCES
(1) Kathmandu Dalit Declaration, adopted at the International Consultation on Caste-Based Discrimination: Establishing Dalit Rights in the Contemporary World; the Role of Governments, the United Nations and the Private Sector, on December 1 2004; the Ambedkar Principles; employment and additional principles on economics and social exclusion formulated to assist all foreign investors in South Asia to address caste discrimination (2005); the Global Sullivan Principles on Social Responsibility (1999).
(2) The definition of discrimination based on work and descent is modeled on Article 1.1 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). It accordingly supports and encourages consistency with existing international law on the subject of discrimination, and should be read as such. Likewise, paragraph 2 is modeled on Article 1.4 of ICERD and is intended to explicitly allow for the possibility of special measures, such as affirmative action, taken solely for the purpose of and to the extent necessary for the equal enjoyment of human rights and fundamental freedoms of groups and individuals affected by discrimination based on work and descent.
In practice, discrimination based on work and descent is usually embedded in a discernible context of religious, moral, or cultural beliefs about the relative worth of a certain group of persons, as well as notions of purity, pollution, and untouchability. While such a context is not necessary for identifying discrimination based on work and descent, its existence should give reason for greater concern that discrimination based on work and descent is taking place. In addition, actors should recognize that in most situations the effective elimination of discrimination based on work and descent will be impossible with the eradication of the background context of prejudicial beliefs and attitudes, and organize their efforts accordingly.
(3) This paragraph reaffirms that discrimination based on work and descent is prohibited by international law. At the most general level, this form of discrimination in the protection and promotion of human rights and fundamental freedoms is inconsistent with the goal, proclaimed in the Preamble to the Universal Declaration of Human Rights (UDHR) and underlying every major instrument of international human rights law, of universal respect for, and observance of, human rights and fundamental freedoms for all. But discrimination based on work and descent is also clearly prohibited by Article 1.1 of ICERD, as confirmed by the Committee on the Elimination of Racial Discrimination’s General Recommendation 29, A/57/18 at 111 (2002). In addition, discrimination based on work and descent is inconsistent with the specific provisions prohibiting discrimination and protecting equality in, inter alia, the UDHR (see, e.g., Articles 1, 7, 10, 21, 26), the International Covenant on Civil and Political Rights (ICCPR) (see, e.g., Articles 4, 20, 24, 26), the International Covenant on Economic, Social and Cultural Rights (ICESCR) (see, e.g., 2, 7 10, 13), the International Labour Organization Convention (ILO) No. 111 (Articles 1.1 and 3) and Recommendation No. 111, as well as the ICERD.
(4) This principle reflects both the (1) reality of heightened risk for women and girls, children, the sick or disabled and the aged in contexts of discrimination based on work and descent; and (2) the recognition by international law of risks of this sort. Especially women and girls, as well as children of both sexes, face heightened risk and multiple discrimination in societies in which discrimination based on work and descent is practiced. International law has recognized the increased need for protection of human rights and fundamental freedoms of women and girls and children through the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). For example, the Preamble to CEDAW, emphasizing the interdependence of the elimination of discrimination against women and the elimination of other forms of discrimination. The non-discrimination article CRC (Article 2) clearly indicates that the protection and promotion of the rights of the child shall be pursued without distinction in status.
(5) The phrase “including but not limited to” recognizes that international law affords affected communities a greater range of rights than listed in this paragraph, viz. the full range of human rights and fundamental freedoms now protected by international law. The purpose of the list is to identify areas of particular risk now faced by affected communities, based on sociological research and documentation, summarized, inter alia, in the Progress report of the Special Rapporteurs on the topic of discrimination based on work and descent, A/HRC/Sub.1/58/CRP.2* (2006), Chapter III. This list should therefore be treated as an open-ended, rather than a rigid, category, to which further rights may be added as requiring special attention.
The rights enumerated in the list are recognized by international law, such as the UDHR (Articles 3, 4, 5, 6, 7, 8, 9, 10, 11, 17, 20, 22, 23, 25, 26, 27), ICCPR (Articles 6, 7, 8, 10, 14, 25, 26), ICESCR (Articles 7, 10, 11, 12, 13), ICERD (Article 5(a), (b), (c), (d)(v) and (ix), (e)(i),(iii), and (iv)), CRC (Article 32), as well as standards of conditions of employment and education as provided by the ILO Fundamental Conventions (No.s 29, 105, 87, 98, 100, 111, 138, 182) as well as the 1998 ILO Declaration on Fundamental Principles and Rights at Work. A number of these rights are considered non-derogable (derogation from ICCPR Articles 6, 7, 8.1 and 2, 11 is disallowed by ICCPR Article 4). The right to physical security and to live free from violence and the right to be free from forced labour should be read to include the peremptory norms against torture and slavery. (On the peremptory norm against slavery, see ILO, Forced Labour in Myanmar (Burma), Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), Official Bulletin (Geneva), 1998, Series B, special supplement, para. 538). The ILO on Fundamental Principles and Rights at Work binds member states regardless of their ratification of the eight Fundamental Conventions. The particular relation between these rights and legal obligations of states and other actors will depend on further factors such as state ratification of treaties, as well as the development of doctrine and jurisprudence by national and international courts and treaty bodies, including development in the recognition of norms as customary international law.
Principle 6 also reflects the general approach of these Principles and Guidelines: the central problem in contexts of discrimination based on work and descent is that there are certain universal rights and freedoms which are wrongfully being denied to a descent-based community. Thus, the particular mention of terms such as “descent,” “work and descent,” or “discrimination” is not necessary for a right or duty recognized by international standards to merit special attention in efforts to eliminate discrimination based on work and descent.
In line with Principle 1, Principle 6 places an emphasis on the equal protection and promotion of rights for women and girls pursuant to CEDAW, as well as the protections required for children pursuant to CRC. In addition to the CRC, ILO Convention No. 182 imposes an obligation in particular to prohibit and eliminate certain forms of child labour, including those involving slavery or slavery-like practices (Article 3(a)) and carried out in circumstances likely to harm the health, safety and morals of the child (Article 3(d)). ILO Convention No. 138 provides that no child shall enter the labour market before completion of compulsory schooling and, in any case, shall not be less than secondary education at 14 or 15 years of age (Article 2).
(6) These Guidelines articulate specific measures to be taken by states and other actors in order to implement the Principles. They are based on sociological documentation and research on the specific obstacles faced by affected communities as summarized, inter alia, in the Progress report of the Special Rapporteurs on the topic of discrimination based on work and descent, A/HRC/Sub.1/58/CRP.2* (2006), Chapter III.
(7) This Guideline emphasizes the need for states, including those which have specific legislation prohibiting discrimination based on work and descent, to ensure that the elimination of such discrimination is not merely formal or in language. While explicit legislation is often necessary and strongly encouraged (see Guidelines 5 and 6), it has not proven sufficient. Assessments of the progress made by countries that explicitly prohibit human rights violations against affected communities have shown that these prohibitions often prove ineffective in the absence of diligent enforcement. The rest of the Guidelines should be read to conform with and support this general Guideline.
(8) This guideline draws on concluding observations to governments of caste affected countries by the Committee on the Elimination of Racial Discrimination, in particular the concluding observations on India CERD/C/IND/CO/19 (2007) paragraph 18. The guidelines 16, 17, 24, 27, 37 and 50 also take some parts of the same document, CERD/C/IND/CO/19 (2007), respectively from para.s 15, 26, 17, 23, 25 and 22.
(9) The ILO Protection of Wages Convention No.95 guarantees payment in legal tender, cash, fair reasonable, direct, adequate and timely.
(10) "With regard to the practice of manual scavenging and the fact the Dalits are usually engaged in this practice due to their social origin…the Committee noted in its previous observation that the Tenth Five-Year Plan (2002-07) refers to a nation-wide programme for the total eradication of manual scavenging by 2007…In this context, the Committee strongly urges the Government to take decisive action. India Observation C.111 of ILO Committee of Experts on manual scavenging.
(11) Affected communities are likely to suffer high and disproportionate levels of poverty due to discriminatory practices; such barriers and practices should be addressed including by expanding access to adequate sources of income and employment for the affected communities.
In residential areas in which access to food, clothing and housing is typically provided through communal resource arrangements such as village wells and ponds, community grazing grounds, village forests and public roads, national and local governments should monitor and facilitate affected communities’ access to these common resources and ensure that their access is not blocked through prejudicial or punitive measures by other residents.
